COMPANIES ACT, 2013 REGISTRATION OF CHARGES

Transcription

1 COMPANIES ACT CT,, 2013 REGISTRATION TION OF CHARGES

2 REGISTRATION OF CHARGES 1. WHAT IS A CHARGE A charge is a right created by any person including a company referred to as the borrower on its assets and properties, present and future, in favour of a financial institution or a bank, referred to as the lender, which has agreed to extend financial assistance. Section 2(16) of the Companies Act, 2014 defines charges so as to mean an interest or lien created on the property or assets of a company or any of its undertakings or both as security and includes a mortgage The following are the essential features of the charge which are as under: 1. There should be two parties to the transaction, the creator of the charge and the charge holder. 2. The subject-matter of charge, which may be current or future assets and other properties of the borrower. 3. The intention of the borrower to offer one or more of its specific assets or properties as security for repayment of the borrowed money together with payment of interest at the agreed rate should be manifested by an agreement entered into by him in favour of the lender, written or otherwise. A charge may be fixed or floating depending upon its nature. Charge as defined in Transfer of Property Act, 1882 According to Section 100 of the Transfer of Property Act, 1882, where an immovable property of one person is by act of parties or operation of law made security for the payment of money to another and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property, and all the provisions which apply to a simple mortgage shall, so far as may be, apply to such charge. 1

3 2 Registration of Charges 2. NEED FOR CREATING A CHARGE ON COMPANY S ASSETS Almost all the large and small companies depend upon share capital and borrowed capital for financing their projects. Borrowed capital may consist of funds raised by issuing debentures, which may be secured or unsecured, or by obtaining financial assistance from financial institution or banks. The financial institutions/banks do not lend their monies unless they are sure that their funds are safe and they would be repaid as per agreed repayment schedule along with payment of interest. In order to secure their loans they resort to creating right in the assets and properties of the borrowing companies, which is known as a charge on assets. This is done by executing loan agreements, hypothecation agreements, mortgage deeds and other similar documents, which the borrowing company is required to execute in favour of the lending institutions/ banks etc. As a matter of convenience and practice, as and when more funds are required by companies, they approach the same institutions/banks or certain new institutions/ banks and offer same assets as security for fresh loans. However, when the same assets are charged for a second and subsequent times, a very important question arises as to priority in respect of the charges in favour of different institutions. This situation is managed by securing consent of the earlier lending institutions to the creation of second and subsequent charges on the same assets. With their consents, the charges of all the lending institutions ranks pari passu, i.e. on the same footing. However, the earlier lending institution may not give its consent to the creation of second charge on the ground that the realisable value of the asset charged in its favour is not adequate to cover its loan and as such it cannot share its right of charge with the lending institutions which seek second and subsequent charges. The real question which alerts the lending institutions is how to ensure that the assets being offered as security for their proposed loans are not already encumbered. 3. DUTY TO REGISTER CHARGE Primarily, under section 77 of the Companies Act, 2013 every company creating a charge shall register the particulars of charge signed

4 Registration of Charges 3 by the company and its charge holder together with the instruments creating. Important points in the Act relating to charge creation: Any charge created within or outside India- on property or assets or any of the company s undertakings - Whether tangible or otherwise, situated in or outside India shall be registered. Hence all types of charges are required under the Act to be registered whether created within or outside India. Time limit for registration of a Charge A charge created by a company is required to be registered with the Registrar within thirty days of its creation in such form and on payment of such fees as may be prescribed. According to Companies (Registration of Charges) Rules, 2014 e-forms prescribed for the purpose of creating or modifying the charge is Form No.CHG-1 (for other than Debentures) or Form No.CHG-9 (for debentures including rectification). Condonation of delay by Registrar: The Registrar may on an application by the company allow registration of charge within three hundred days of creation or modification of charge on payment of additional fee. The Registrar may, on being satisfied that the company had sufficient cause for not filing the particulars and instrument of charge, if any, within a period of thirty days of the date of creation of the charge, allow the registration of the same after thirty days but within a period of three hundred days of the date of such creation of charge or modification of charge on payment of additional fee. The application for delay shall be made in Form No.CHG-10 and supported by a declaration from the company signed by its secretary or director that such belated filing shall not adversely affect rights of any other intervening creditors of the company. Condonation of delay by the Central Government: If company fails to register the charge even within this period of three hundred days, it may seek extension of time in accordance with Section 87 from the Central Government. The same has been discussed later in this chapter. Application for registration of charge by the charge-holder According to Section 78 where a company fails to register the charge within the period specified above, the person in whose favour the charge is created may apply to the Registrar for registration of the charge alongwith the instrument created for the charge in Form

5 4 Registration of Charges No.CHG-1 or Form No.CHG-9, as the case may be, duly signed along with fee. The registrar may, on such application, give notice to the company about such application. The company may either itself register the charge or shows sufficient cause why such charge should not be registered. On failure on part of the company, the Registrar may allow registration of such charge within fourteen days after giving notice to the company. shall allow such registration. Where registration is affected on application of the person in whose favour the charge is created, that person shall be entitled to recover from the company, the amount of any fee or additional fees paid by him to the Registrar for the purpose of registration of charge. 4. CERTIFICATE OF REGISTRATION OF CHARGE Where a charge is registered with the Registrar, Registrar shall issue a certificate of registration of charge in Form No.CHG-2 and for registration of modification of charge in Form No.CHG-3 to the company and to the person in whose favour the charge is created. The certificate issued by the Registrar whether in case of registration of charge or registration of modification, shall be conclusive evidence that the requirements of Chapter VI of the Act (Registartion of Charges) and the rules made there under as to registration of creation or modification of charge, as the case may be, have been complied with. Further the Act provides that no charge created by the company shall be taken into account by the liquidator or any other creditor unless it is duly registered and a certificate of registration is given by the Registrar. However, this does not prejudice any contract or obligation for the repayment of the money secured by a charge. 5. ACQUIRING PROPERTY UNDER CHARGE AND MODIFICATION OF CHARGE Section 79 of the Act makes it clear that the requirement of registering the charge shall also apply to a company acquiring any property subject to charge or any modification in terms and conditions of any charge already registered. It provides that the provisions of Section 77 relating to registration of charge shall apply to: (a) A company acquiring any property subject to a charge within the meaning of that section; or (b) Any modification in the terms or conditions or the extent or operation of any charge registered under that section.

6 Registration of Charges 5 The provisions relating to condonation of delay shall apply, mutatis mutandis, to the registration of charge on any property acquired subject to such charge and modification of charge under section 79 of the Act. 6. VERIFICATION OF INSTRUMENTS According to the Rules, a copy of every instrument evidencing any creation or modification of charge and required to be filed with the Registrar in pursuance of section 77, 78 or 79 shall be verified as follows- (a) where the instrument or deed relates solely to the property situated outside India, the copy shall be verified by a certificate issued either under the seal of the company, or under the hand of any director or company secretary of the company or an authorised officer of the charge holder or under the hand of some person other than the company who is interested in the mortgage or charge; (b) where the instrument or deed relates, whether wholly or partly, to the property situated in India, the copy shall be verified by a certificate issued under the hand of any director or company secretary of the company or an authorised officer of the charge holder. 7. SATISFACTION OF CHARGES According to section 82 read with the Rules, the company shall give intimation to the Registrar of the payment or satisfaction in full of any charge within a period of thirty days from the date of such payment or satisfaction in Form No.CHG-4 along with the fee. Where the satisfaction of the charge is not filed within thirty days from the date on which such payment of satisfaction, the Registrar shall not register the same unless the delay is condoned by the Central Government, which is later discussed in this chapter. On receipt of such intimation, the Registrar shall issue a notice to the holder of the charge calling a show cause within such time not exceeding fourteen days, as to why payment or satisfaction in full should not be recorded as intimated to the Registrar. If no cause is shown, by such holder of the charge, the Registrar shall order that a memorandum of satisfaction shall be entered in the register of charges maintained by the registrar under section 81 and shall inform the company. If the cause is shown to the registrar shall record a note to that effect in the register of charges and shall inform the company accordingly.

7 6 Registration of Charges However the aforesaid notice shall not be sent, in case intimation to the registrar is in specified form and is signed by the holder of charge. Power of Registrar to Make Entries of Satisfaction in absence of intimation from the company: There may be times where a company may fail to send intimation of satisfaction of charge to the Registrar but according to section 83 of the Act, registrar may enter in the register of charges memorandum of satisfaction on receipt of evidence to his satisfaction that (a) (b) The debt for which the charge was given has been paid or satisfied in whole or in part; or Part of the property or undertaking charged has been released from the charge or has ceased to form part of he company s property or undertaking. The Registrar shall inform affected parties within thirty days of making the entry in the registrar of charges. Certificate of registration of satisfaction of charge: Where the Registrar enters a memorandum of satisfaction of charge in full in pursuance of section 82 or 83, he shall issue a certificate of registration of satisfaction of charge in Form No.CHG NOTICE OF CHARGE According to section 80, where any charge on any property or assets of a company or any of its undertakings is registered under section 77, any person acquiring such property, assets, undertakings or part thereof or any share or interest therein shall be deemed to have notice of the charge from the date of such registration. The section clarifies that if any person acquires a property, assets or undertaking for which a charge is already registered, it would be deemed that he has complete knowledge of charge from the date the charge is registered. 9. REGISTER OF CHARGES MAINTAINED IN ROC S OFFICE In accordance with section 81 and the rules the Registrar of Companies shall maintain a register containing particulars of the charges registered in respect of every company. The particulars of charges maintained on the Ministry of Corporate Affairs portal ( shall be deemed to be the register of charges for the purposes of section 81 of the Act. This charge register shall be open to inspection by any person on payment of fee for each inspection.

8 Registration of Charges INTIMATION OF APPOINTMENT OF RECEIVER OR MANAGER Section 84 provides that if any person obtains an order for the appointment of a receiver of, or of a person to manage, the property, subject to a charge, of a company or if any person appoints such receiver or person under any power contained in any instrument, he shall, within a period of thirty days from the date of the passing of the order or of the making of the appointment, give notice of such appointment to the company and the Registrar along with a copy of the order or instrument and the Registrar shall, on payment of the prescribed fees, register particulars of the receiver, person or instrument in the register of charges. Any person so appointed shall, on ceasing to hold such appointment, give to the company and the Registrar a notice to that effect and the Registrar shall register such notice. The notice of appointment or cessation of a receiver of, or of a person to manage, the property, subject to charge, of a company shall be filed with the Registrar in Form No. CHG.6 along with fee. 11. COMPANY S REGISTER OF CHARGES Section 85 provides that every company shall keep at its registered office a register of charges in Form No. CHG.7 which shall include therein all charges and floating charges affecting any property or assets of the company or any of its undertakings, indicating in each case such particulars as may be prescribed. The entries in the register of charges maintained by the company shall be made forthwith after the creation, modification or satisfaction of charge, as the case may be. Such register of charges shall contain the particulars of all the charges registered with the Registrar on any of the property, assets or undertaking of the company and the particulars of any property acquired subject to a charge as well as particulars of any modification of a charge and satisfaction of charge. All the entries in the register shall be authenticated by a director or the secretary of the company or any other person authorised by the Board for the purpose. The register of charges shall be preserved permanently and the instrument creating a charge or modification thereon shall be preserved for a period of eight years from the date of satisfaction of charge by the company.

9 8 Registration of Charges A copy of the instrument creating the charge shall also be kept at the registered office of the company along with the register of charges. Inspection of Charges: The register of charges and instrument of charges shall be kept open for inspection during business hours by members, creditors or any other person subject to reasonable restriction as the company by its article impose. The register of charges and the instrument of charges kept by the company shall be open for inspection- (a) by any member or creditor of the company without fees; (b) by any other person on payment of fee. 12. RECTIFICATION BY CENTRAL GOVERNMENT IN REGISTER OF CHARGES /CONDONATION OF DELAY (SECTION 87) The Central Government on being satisfied that (i) a. the omission to file with the Registrar the particulars of any charge created by a company or any charge subject to which any property has been acquired by a company or any modification of such charge; or b. the omission to register any charge within the time required under this Chapter or the omission to give intimation to the Registrar of the payment or the satisfaction of a charge, within the time required under this Chapter; or c. the omission or mis-statement of any particular with respect to any such charge or modification or with respect to any memorandum of satisfaction or other entry made in pursuance of section 82 or section 83, was accidental or due to inadvertence or some other sufficient cause or it is not of a nature to prejudice the position of creditors or shareholders of the company; or (ii) on any other grounds, it is just and equitable to grant relief, it may on the application of the company or any person interested and on such terms and conditions as it may seem to the Central Government just and expedient, direct that the time for the filing of the particulars or for the registration of the charge or for the giving of intimation of payment or satisfaction shall be extended or, as the case may require, that the omission or mis-statement shall be rectified. Where the instrument creating or modifying a charge is not filed

10 Registration of Charges 9 within a period of three hundred days from the date of its creation (including acquisition of a property subject to a charge) or modification and where the satisfaction of the charge is not filed within thirty days from the date on which such payment of satisfaction, the Registrar shall not register the same unless the delay is condoned by the Central Government. The section implies that the the Central Government has power to condone delay beyond a period of three hundred days. This section empowers Central Government to condone delay for registration of modification of particulars of any charge and for filing of intimation for satisfaction of charges. Further this section empowers central Government to rectify the omission or misstatement in register of charges. The application may be filed by the company or any other person interested with the Central Government in Form No.CHG-8 along with the fee Where the Central Government extends the time for the registration of a charge, the order shall not prejudice any rights acquired in respect of the property concerned before the charge is actually registered. The order passed by the Central Government under subsection (1) of section 87 of the Act shall be required to be filed with the Registrar in Form No.INC.28 along with the fee as per the conditions stipulated in the said order. 13. CONSEQUENCES OF NON-REGISTRATION OF CHARGE According to Section 77 of the Companies Act, 1956, all types of charges created by a company are to be registeredby the ROC, where they are non-compliant and are are not filed with the Registrar of Companies for registration, it shall be void as against the liquidator and any other creditor of the company. This does not, however, mean that the charge is altogether void and the debt is not recoverable. So long as the company does not go into liquidation, the charge is good and may be enforced. Void against the liquidator means that the liquidator on winding up of the company can ignore the charge and can treat the concerned creditor as unsecured creditor. The property will be treated as free of charge i.e. the creditor cannot sell the property to recover its dues. Void against any creditor of the company means that if any subsequent charge is created on the same property and the earlier charge is not registered, the earlier charge would have no consequence and the

11 10 Registration of Charges latter charge if registered would enjoy priority. In other words, the latter charge holder can have the property sold in order to recover its money. Thus, non-filing of particulars of a charge does not invalidate the charge against the company as a going concern. It is void only against the liquidator and the creditors at the time of liquidation. The company itself cannot have a cause of action arising out of nonregistration. 14. PARTICULARS OF CHARGES The following particulars in respect of each charge are required to be filed with the Registrar: (a) date and description of instrument creating charge; (b) total amount secured by the charge; (c) date of the resolution authorising the creation of the charge; (in case of issue of secured debentures only); (d) general description of the property charged; (e) a copy of the deed/instrument containing the charge duly certified or if there is no such deed, any other document evidencing the creation of the charge to be enclosed; (f) list of the terms and conditions of the loan; and (g) name and address of the charge holder. 15. PROCEDURE FOR REGISTRATION OF CREATION/ MODIFICATION SATISFACTION OF CHARGE If a company has passed special resolutions under Section 180(3)(c) of the Companies Act, 2013, authorising its Board of directors to borrow funds for the requirements of the company and under Section 180(1)(a) of the Companies Act, 2013, authorising its Board of directors to create charge on the assets and properties of the company to provide security for repayment of the borrowings in favour of the financial institutions/banks or lenders and in exercise of that authority has signed the loan documents and now proposes to have the charge, created by it registeration with the ROC, should follow the procedure detailed below: 1. Where the special resolution is passed as required under section 180 of the Companies Act, 2013, form MGT14 of the Companies (Management and Administration) Rules, 2014 is to be files with the registrar.

12 Registration of Charges According to section 77 of the Companies Act, 2013 every company creating any charge created within or outside India on property or assets or any of the company s undertakings whether tangible or otherwise, situated in or outside India shall have to be registered.,for the purpose of creating/ modifying a charge file particulars of the charge with the concerned Registrar of Companies within thirty days of creating the For orm m No.CHG -1 (for other than Debentures) or For orm m No.CHG - 9 (for debentures including rectification), as the case may be. 3. Attach the following documents with e-form No. CHG- 9/ CHG -1: A certified true copy of every instrument evidencing any creation or modification of charge. In case of joint charge and consortium finance, particulars of other charge holders. Instrument(s) evidencing creation or modification of charge in case of acquisition of property which is already subject to charge together with the instrument evidencing such acquisitions 4. Payment of fees can be made online in accordance with Annexure B of Companies (Registration offices and fees) Rules, Electronic payments through internet can be made either by credit card or by internet banking facility. 5. If the particulars of charge cannot be filed within thirty days due to unavoidable reasons, then it may be filed within three hundred days of such creation after payment of such additional fee as prescribed in with Annexure B of Companies (Registration offices and fees) Rules, Such application for delay to the registrar shall be made in For orm m No.CHG and supported by a declaration from the company signed by its secretary or director that such belated filing shall not adversely affect rights of any other intervening creditors of the company. 7. Verification of every instrument evidencing any creation or modification of charge, where the instrument or deed relates solely to the property situated outside India, the copy shall be verified by a certificate issued either under the seal of the company, or under the hand of any director or

13 12 Registration of Charges company secretary of the company or an authorised officer of the charge holder or under the hand of some person other than the company who is interested in the mortgage or charge. 8. Verification of every instrument evidencing any creation or modification of charge, where the instrument or deed relates, whether wholly or partly, to the property situated in India, the copy shall be verified by a certificate issued under the hand of any director or company secretary of the company or an authorised officer of the charge holder. 9. Where a charge is registered with the Registrar obtain a certificate of registration of such charge in For orm No.CHG- 2. Where the particulars of modification of charge is registered the Registrar shall issue a certificate of modification of charge in For orm No. CHG A company shall within a period of thirty days from the date of the payment or satisfaction in full of any charge registered, give intimation of the same to the Registrar in For orm No.CHG-4 along with the fee as prescribed in with Annexure B of Companies (Registration offices and fees) Rules, Where the Registrar enters a memorandum of satisfaction of charge in full obtain a certificate of registration of satisfaction of charge in For orm No.CHG Incorporate changes in relation to creation, modification and satisfaction of charge in the register of charges maintained by the company in For orm No. CHG.7 and enter therein particulars of all the charges registered with the Registrar on any of the property, assets or undertaking of the company and the particulars of any property acquired subject to a charge as well as particulars of any modification of a charge and satisfaction of charge. Such register is to be kept at its registered office of the company. 13. All the entries in the register shall be authenticated by a director or the secretary of the company or any other person authorised by the Board for the purpose. 14. The register of charges shall be preserved permanently and the instrument creating a charge or modification thereon shall be preserved for a period of eight years from the date of satisfaction of charge by the company. 15. Where the satisfaction of the charge is not filed with the Registrar within thirty days from the date on such payment

14 Registration of Charges 13 of satisfaction, an application for condonation of delay shall be filed with the Central Government in For orm m No.CHG-8-8 along with the fee as prescribed in with Annexure B of Companies (Registration offices and fees) Rules, Where the instrument creating or modifying a charge is not filed with the Registrar within a period of three hundred days from the date of its creation (including acquisition of a property subject to a charge) or modification an application for condonation of delay shall be filed with the Central Government in For orm m No.CHG-8-8 along with the fee as prescribed in with Annexure B of Companies (Registration offices and fees) Rules, The order passed by the Central Government shall be required to be filed with the Registrar in Form No.INC.28 along with the fee as per the conditions stipulated in the said order. 18. For all other matters other than condonation of delay, application shall be made to the Central government in For orm No.CHG-8 along with the fee. GIST OF E-FILING UNDER CHARGE MANAGEMENT S.No. E-Form Purpose 1 CHG-1 Creating or modifying the charge (for other than Debentures) 2 CHG-2 Certificate of registration 3 CHG-3 Certificate of modification of charge 4 CHG-4 Intimation of the satisfaction to the Registrar 5 CHG-5 Memorandum of satisfaction of charge 6 CHG-6 Notice of appointment or cessation of receiver or manager 7 CHG-7 Register of charges 8 CHG-8 Application for condonation of delay shall be filed with the Central Government 9 CHG-9 Creating or modifying the charge in (for debentures including rectification) 10 CHG-10 Application for delay to the registrar All the fees shall be paid in accordance with Annexure B of Companies (Registration offices and fees) Rules, 2014 issued by the Ministry of Corporate Affairs as a circular dated 01/04/2014 and the same is available at